New paper in Science: GenderSci Lab calls for accountable science on sex in light of rising appeals to scientific authority in discriminatory law and policy
By Heather Shattuck-Heidorn, Maayan Sudai, Sarah Richardson, and Kelsey Ichikawa
“When scientific uses of biological sex concepts lack clarity, precision, and rigor, this increases the risk that legal advocates will misunderstand and misrepresent scientific research on biological sex,” argues the GSL author team.
"Whichever" by Indrid__Cold is marked with CC0 1.0. Public Domain.
In this Friday’s issue of Science, the GenderSci Lab has a peer-reviewed Policy Forum article, “Law, Policy, Biology, and Sex: Critical Issues for Researchers“ (Harvard hosted version here). The article documents how law and policy makers are increasingly drawing on biological concepts of sex to support a range of often discriminatory legal aims. We offer recommendations for researchers on how to conduct ethical and responsible research on sex-related variables in light of this broader context. In this explainer, we provide additional background on this new article, and answer some questions that readers may have.
Why we wrote this piece, and what we argue
Our Science Policy Forum was motivated by the unprecedented suite of laws proposed or passed that exclude gender minorities from access to healthcare, bathrooms, and employment protections, among other human rights. Often, such laws appeal explicitly to the authority of science and invoke simplistic notions of a thoroughgoing biological sex binary as a means to a political end. Such appeals to binary biological sex in the law misrepresent the state of scientific research on sex, which, rather than being settled around a single construct of sex, is a dynamic, continually-evolving field that recognizes that sex is a complex contextual variable that is not binary in every system nor at every level of analysis (e.g. American Medical Association, American Society of Naturalists, Nature 2018, Dubois and Shattuck-Heidorn 2021, Richardson 2022).
When legal actors with political goals engage in scientific reasoning and appeal to biological authority like this, what is the responsibility of the scientific community? In our piece, we argue that scientists studying sex differences should be familiar with the landscape of how sex is used in the law, as this policy context is one critical space in which they can reasonably anticipate their research will be received. We further argue that scientists should consider ways to be more clear about the limits of sex as a binary concept within their own work, and to clarify and contextualize their use of sex-related variables and any claims of sex differences.
Uses of sex classifications in law and policy
We begin by offering an overview of the uses of sex in current legal contexts. As we note in the article, “legal actors must make situated and often value-laden choices about the use of sex classifications.” The first contribution of the piece is to characterize for scientists three broad stances currently at play in the use of sex classifications in law and policy, which we term essentialist, abolitionist, and pluralist:
Essentialist approaches to sex in the law pose sex as a binary, intrinsic property of people at all levels of their biology and tend to be used to support anti-LGBTQ+ policies. Such approaches take sex to be a pervasive given (sex as observed at birth, for instance) that can extend to most or all domains of human life and biology afterwards.
Abolitionist approaches to sex in the law aim to eliminate sex classifications because of their harmful effects. This could mean eliminating sex categories from existing policies and administrative documents (e.g. removing sex from the public portion of birth certificates), or “unsexing” gendered policies by adopting more accurate, inclusive criteria (e.g. “primary caretaker”).
Pluralist approaches to sex in the law use different definitions of sex depending on the social and political context and pragmatic needs. This could mean, for example, adding a category of “X” on a government identification document for those who do not fit a Male/Female binary.
What can scientists do?
We then offer a set of recommendations for scientists interested in guarding against the malicious use of their research in discriminatory legislation or policy:
We recommend that scientists who incorporate sex-related variables in their research and wish to avoid misrepresentations of their work in law and policy familiarize themselves with potential legal impacts of their research, pedagogy, and engagement with media and policymakers.
We suggest that scientists thoroughly contextualize the aspects of sex at play in their models and experiments, and make explicit what their research can and cannot support. For a deeper dive into what that could look like, check out our teaching module and research handout on sex contextualism.
In order to guard against sex-disaggregated findings being used to uphold discriminatory policy, we advise that funders and publishers strive to better align sex as a biological variable (SABV) guidelines with best practices for carefully contextualized, precise studies on well-defined sex-related variables.
We also encourage scientists to seriously reflect on the necessity of sex categorization in their research, and, when analyzing sex differences, to consider incorporating analyses of gender and social variables that may contribute to observed differences.
Questions & Answers
We have anticipated some questions that readers may have about our article.
Are you endorsing one of the legal approaches you outlined?
In this piece we are not endorsing one of the legal approaches. However, we do warn against the essentialist approach because it tends to codify policies that exclude or discriminate against trans, nonbinary, and gender-expansive individuals.
What’s the relationship between science and the three legal approaches? Does the pluralist approach mean selectively inserting science in the law? Is the abolitionist approach opposed to using biological definitions of sex?
Our article aims to help scientists understand the extent that scientific claims about sex are prolifically sourced in the legal and policy realm. All three of the legal approaches could invoke scientific authority on biology, and all three could involve misapplications of scientific studies. In this article we focus on the particularly widespread and concerning ways that the essentialist approach invokes science. Scientists who wish to avoid misrepresentation of their work toward any end should consider our recommendations.
Aren’t there many robust, replicated biological sex differences? Isn’t a biological binary sex framework scientifically sound in many cases?
While sex-related variables play an important role in evolution and development, there is not a scientific consensus that binary biological sex-related variables define maleness and femaleness in every system, for every research question, and at every level of biological analysis. In fact, sex-related variables are operationalized in many different and context-specific ways in scientific research. Furthermore, a growing body of research demonstrates the limitations of binary sex approaches for understanding human variation linked to sex-related factors.
Are you urging scientists to modify their scientific practice in light of the law?
Emphatically, we are not suggesting that political concerns should direct the practice of science. Rather, responsible and good science involves being aware of how research findings may be inappropriately used in a socio-political arena and acting in ways that ameliorate potential harms. Our recommendations— contextualized sex-related variables, incorporation of gender-related and other social variables, and preference for variables more specific and more mechanistically involved than general “sex”---are aimed at producing more precise, rigorous science as well as guarding against possible harms.
If what is mostly happening is the law’s broad appeal to scientific authority, how will changes in individual scientists’ approach to making claims about sex differences address this problem?
Sometimes legal invocations of science in the context of laws related to sex and gender inclusion appeal broadly to scientific authority, and other times they make specific scientific claims or cite published scientific research. In either case, not only individual scientists but also scientific bodies, including funders, journals, and associations, have an obligation to counter misinterpretations and anticipate and ameliorate harmful uses of scientific research. As we acknowledge, while it is impossible to eliminate cherrypicking or malicious misuses of science, through precise contextualization and rigorous, reflective use of sex-related variables, scientists can contribute to a better understanding of the complex nature of scientific expert knowledge about sex differences.
Recommended Citation
Shattuck-Heidorn, H., Sudai, M., Richardson, S., and Ichikawa, K. “New paper in Science: GenderSci Lab calls for accountable science on sex in light of rising appeals to scientific authority in discriminatory law and policy.” GenderSci Lab Blog. 2022 May 19. genderscilab.org/blog/biology-law-policy-science-explainer
Statement of Intellectual Labor
Blog was written by Maayan Sudai, Kelsey Ichikawa, Sarah Richardson, and Heather Shattuck-Heidorn, with additional review from Helen Zhao. Authors contributed equally to writing and edits.